Paths to Bipartisanship: Insights from Former Senator Russ Feingold

Executive Interview Editor Josh Caplan and Senior Interview Editor Maya Khan talked with former Senator Russ Feingold (D-WI) for the Spring Edition of the Georgetown Public Policy Review, which will be released on Thursday.

Sen. Feingold served in the Senate from 1993 to 2011 after having spent ten years in the Wisconsin State Senate. After losing his 2010 reelection campaign to Republican Ron Johnson, he founded Progressives United, a 501(c)4 political action committee (PAC) devoted to facilitate grassroots mobilization. As a senator, he was known for being on the progressive wing of the Democratic Party, yet able to broker bipartisan deals on challenging issues. He worked with future Republican presidential candidate Sen. John McCain (R-AZ) to reform the campaign finance system with the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act. In 2001, he was the only senator to vote against the Patriot Act, saying that the anti-terrorism legislation unnecessary violated the civil liberties of innocent Americans. Following are excerpts from the full published interview.

Georgetown Public Policy Review (GPPR): In recent decades, partisanship and polarization in the US have been consistently increasing. What do you think is causing this divide?

Russ Feingold: Well, I watched this happen. After I came to the Senate in the early ‘90s, it didn’t seem to be particularly partisan, compared to now. One of the things that happened is a bad cycle, which really began with the Contract With America coming into 1994. That group came in with a very partisan attitude, into Congress. And then Democrats often responded in the same way, and we sort of drew up sides. In the Senate, we used to have a much more bipartisan nature.

A lot of the things that have fueled this are the growth of talk radio and cable TV, where they need to fill up the time 24 hours a day. You’ve seen the extreme positions and almost bias, of both Fox and MSNBC, where people are constantly drilled with mostly just one side of the story. That really causes people to have their news and their attitudes filtered in one direction. And, unfortunately, people seem to be demanding that their elected representatives toe a strict line of one side or the other rather than finding good opportunities to work with the other side. I used to feel that we were rewarded or praised if we worked with the other side, when I worked with John McCain. That needs to come back again.

GPPR: Partisanship, filibusters, and an aversion to compromise in the Senate are at all-time highs. Is the Senate broken or can Congress come back away from their culture of brinkmanship we’ve been seeing?

RF: Actually, I’m teaching a course at Stanford Law School on this very subject. Is it just that the Senate needs to take a different attitude, or are the rules so screwed up that it can’t work? My view is that it’s not broken, but it is very, very damaged. Rule change may help in some ways, some modifications on the filibuster – greater than was done the other week. But I think the biggest thing is for the American people to demand that their elected representatives try to work with one another. That is going to get a better result than just tinkering with the rules. So, I don’t think it’s fundamentally broken, and I think it can work, if the message that is sent to elected representatives is, “We’re not going to vote for you anymore if you don’t work with the other side.”

GPPR: Is there a reform of the filibuster that you think would help bring compromise, such as the talking filibuster or the Al Franken “41 vote” idea?

RF: Those are both pretty good ideas. The thing I like about the 41 votes idea is that I’ve always pointed out to people that one of the problems of the current filibuster rule – and it hasn’t always been this way – is that, to break a filibuster, you need all 60 people from your side there. The other side doesn’t have to be there at all. If you went 59 to nothing, you still lose. If you make the rule instead that 60% of the people who are present and voting, that would really put a different burden on the minority. As I like to say, Senators like their weekends, so this would change the deal for them. I would like to see that tried – sort of a variation on the idea requiring that the people who want the filibuster to be present. So that would have been much better than the very weak deal that was cut a few weeks ago.

GPPR: Do you believe that it is politically possible for a Democratic president to shrink executive anti-terror powers without Congress or the Supreme Court intervening without risking labeling the Democratic Party as “soft on terror” for an entire generation or more?

RF: I do, and I’m not saying this is easy, but it was exceptionally difficult after 9/11. Unfortunately the Bush administration went in the opposite direction, trying to do everything they could to expand powers such as torture and illegal wiretapping in an inappropriate way. Now that the President has succeeded in getting rid of Osama Bin Laden and has been overwhelmingly re-elected, it’s a golden opportunity for him and for Democrats, as well as Republicans, to say, “Wait a minute, it’s been over 10 years since 9/11, do we really need some of these approaches that appear to be inconsistent with American law and tradition, as well as international law?” I believe the climate is right for that. Yes, if anything goes wrong, people will attempt to blame it on the party or the people that did this. But what I saw in the questioning of Brennan for the CIA, was a very clear sign that at least some of the members of the Senate feel safe now questioning, for example, a drone policy that isn’t carefully regulated. I think that’s a good sign. It’s a sign that the country is maturing, and getting used to the fact that there’s going to be terrorism, but we don’t want to give up all our values in our law in terms of dealing with it.

GPPR: In the landmark campaign finance case Buckley v Valeo, the Court held that Congress can regulate campaign contributions in order to prevent “corruption or its appearance”. Under what framework and in a post-Citizens United world, can Congress revisit campaign finance legislation, and if so, what would be the best policy that can pass in this environment?

RF: Well, really, the answer is to overturn Citizens United. It was only a 5 to 4 decision, and that has got to be our goal. If we don’t do that, the whole system is being swallowed by these unlimited contributions that were prohibited since 1907 and only in the last couple of years have been allowed. So to me, that is the most important thing.

Citizens United created a horrible problem, but it did not eliminate the ability to limit direct contributions. Those limits are still in effect and they apply. So, overturn Citizens United. We have currently limits on contributions that are sufficiently generous, I think, people can give $10,000 per couple, and I think that’s quite a bit. But at least it’s limited. In that context, what we need to do is pass public financing. Overturn Citizens United, fix the Presidential public financing system that is no longer working, and create for the first time Congressional public financing for both House and Senate races. That, along with getting rid of the Federal Election Commission and replacing it with a real enforcement agency, would go a long way toward fixing the system. Frankly, the system was improving a great deal after we passed McCain-Feingold and before Citizens United. We simply need to do a few more things to get it to be, I think, in a better place.

GPPR: As a follow up on that question, the Federal Election Commission was deadlocked on key questions in this past election. Has the FEC outlived its usefulness on regulating campaign finance? Or can it be reformed to be more effective?

RF: Unlike the Senate, the FEC is structurally hopeless. It does get deadlocked because of the way it has partisan appointments. The way it’s done is that both parties don’t appoint people are going to try to come together to try and come to a solution, they appoint the toughest, most partisan lawyers they can find. The structure has to change. That’s why John McCain and I, when I was in the Senate, proposed getting rid of the Federal Election Commission, and creating more of an administrative enforcement agency where somebody is in charge of actually bringing enforcement action. It is completely nonfunctioning. In other words, you can overturn Citizens United, you can make the reforms I just suggested, but if there’s no effective enforcement agency, all of that will not work. So we need a new agency.